People v. Bowie

• Decision Date: 28 July 1977
• Docket Number: Cr. 29480
• Citation: 72 Cal.App.3d 143,140 Cal.Rptr. 49
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Walter BOWIE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 49

140 Cal.Rptr. 49

72 Cal.App.3d 143

The PEOPLE of the State of California, Plaintiff and Respondent, v. Walter BOWIE, Defendant and Appellant.

Cr. 29480.

Court of Appeal, Second District, Division 5, California.

July 28, 1977.

Hearing Denied Sept. 28, 1977.

Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Asst. State Public Defender, Kent L. Richland and J. Courtney Shevelson, Deputy State Public Defenders, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

In a jury trial appellant was convicted on 11 counts of possession of blank checks with intent to defraud in violation of Penal Code section 475. Appellant was sentenced to state prison.

The 11 counts involved 11 checks of a defunct corporation known as Eve Le Coq which were imprinted with a check protector, each in the amount of $198.45. On April 23, 1976, appellant sold these checks to Billie James Reaves with intent to have Reaves fill them in and pass them, in order to defraud other persons. Reaves was acting as an undercover agent for the police.

Reaves testified that earlier in April appellant had supplied Reaves with another check, also drawn on a defunct corporation, Eddie Nober, Inc., ¹ signed by Jack Slade, and they agreed that Reaves would attempt to pass it and would split the proceeds with appellant. However, Reaves was arrested in possession of this check and was questioned about it. Reaves agreed to cooperate with the police to see if appellant would sell him any more checks, which led to the instant transaction. In return for his cooperation, Reaves was allowed to plead guilty to misdemeanor forgery, was given one year summary probation with no jail time, and his parole was not revoked.

In a series of tape-recorded telephone calls from the police station and conversations at appellant's apartment, Reaves negotiated the purchase of the checks and possible purchase of a fake driver's license from appellant. On April 23, Reaves went to appellant's apartment and purchased the 11 checks for $100 in marked bills. Four of the marked $20 bills were found in appellant's apartment later that day in a search pursuant to a warrant. On arrest, appellant also had in his wallet a check stub which appeared to correspond to the Eddie Nober, Inc., check which Reaves had possessed.

The various tape recordings were admitted into evidence. Appellant presented no defense.

CONTENTIONS

Appellant contends (1) that the court erred in refusing to instruct on entrapment; (2) that the court erred in admitting the tape recordings into evidence without requiring the court reporter to transcribe them; (3) that the 11 counts should have been consolidated into 1 count; and (4) that the judgment requires modification as to prior convictions.

INSTRUCTION ON ENTRAPMENT

Appellant requested that the jury be instructed on entrapment. The trial court refused, saying: '. . . I have come to the conclusion that it would be improper to give the instruction regarding entrapment because in this case it would take speculation in order to determine that there was entrapment here. The only thing Mr. Reaves did was ask Mr. Bowie to get some checks. Mr. Bowie did not have any checks at that time, but he had no problem getting them. He did not argue against getting them. True, he had trouble getting them and communicated that to Mr. Reaves, and that is in the evidence, but from this you would have to really speculate to say that this delay was because Mr. Bowie really did not want to do this and was doing it only on the inducement of Mr. Reaves. But the fact is that Mr. Reaves did nothing to really induce him. He just asked him to do it, provided the opportunity, which I think the law is quite clear is not a matter of entrapment.'

The trial court correctly determined this issue. A requested instruction must be given if there is any evidence deserving of any consideration whatever which would support the instruction. (People v. Carmen, 36 Cal.2d 768, 773, 228 P.2d 281; People v. Alamillo, 113 Cal.App.2d 617, 620, 248 P.2d 421.) But if there is no evidence to support such instruction, it need not be given. (People v. Sedeno, 10 Cal.3d 703, 718, 112 Cal.Rptr. 1, 518 P.2d 913.)

Here appellant sold the blank checks to Reaves with intent for Reaves to pass them in order to defraud other persons. The transaction is analogous to the legion of cases involving sales of contraband in which the rule is established that the ordinary persuasion incident to a sale between a ready buyer and a willing seller raises no inference of entrapment. (1 Witkin, Cal. Crimes, § 181, p. 173; Note (1968) 19 Hastings L.J. 825, 842--843.) Where the evidence discloses only the persuasion ordinarily incident to such a sale, no instruction on entrapment need be given. (People v. Gossett, 20 Cal.App.3d 230, 233, 97 Cal.Rptr. 528; People v. Cain, 15 Cal.App.3d 687, 696--697, 93 Cal.Rptr. 388; People v. Cruz, 6 Cal.App.3d 384, 393, 85 Cal.Rptr. 918; People v. Bourland, 247 Cal.App.2d 76, 91--94, 55 Cal.Rptr. 357; People v. Price, 172 Cal.App.2d 776, 778--779, 342 P.2d 437; People v. Richardson, 152 Cal.App.2d 310, 318, 313 P.2d 651; People v. Alamillo, supra, 113 Cal.App.2d 617, 620--621, 248 P.2d 421.) These cases are consistent with the general rule that where there is no evidence of entrapment, an instruction thereon need not be given. (See People v. Perez, 62 Cal.2d 769, 775, 44 Cal.Rptr. 326, 401 P.2d 934; People v. Malotte, 46 Cal.2d 59, 65--66, 292 P.2d 517; People v. Baker, 39 Cal.App.3d 550, 557, 113 Cal.Rptr. 248; People v. Lewis, 214 Cal.App.2d 799, 801--802, 29 Cal.Rptr. 825.) Each case, of course, must be decided on its own facts. (People v. Goree, 240 Cal.App.2d 304, 310, 49 Cal.Rptr. 392; People v. Bourland, supra, 247 Cal.App.2d 76, 93, 55 Cal.Rptr. 357.)

Appellant contends that the record contains evidence from which it could reasonably be inferred that appellant refused Reaves' initial requests, kept putting Reaves off, or otherwise showed reluctance or hesitancy to supply the checks. This contention is without merit. Appellant relies upon an unofficial transcription of the tape of the recorded telephone conversations, which appellant attaches as an appendix to his opening brief. The People argue that the unofficial transcript is not properly a part of the record, but even assuming that it accurately sets forth the conversation, it provides no evidence upon which an entrapment instruction could be based. We agree.

Appellant argues that his first reaction to Reaves' statement, '. . . I just wonderin' if I can pick up some paper,' was, 'No man I ain't doin' nothin'.' However, the context of the next few statements shows that when appellant said this he did not understand what Reaves was asking for. When Reaves made clear his request, appellant said, 'Oh man, let me see.' This was not a refusal. Appellant immediately stated, 'Okay. Well I'll try. When you want it for the weekend?'; said he would 'get in touch with the dude this evening' and instructed Reaves to call him back in the morning. Appellant next argues that when Reaves asked whether appellant could 'do anythng on the ID,' appellant refused, saying, 'No, I, cause I ain't got no bread. . . .' However, the context of the next several statements shows that appellant merely meant that Reaves would have to pay 'out front' for a fake ID. When Reaves indicated he would try to come up with the 'front' money, appellant said, 'Okay. Well, let me know that tomorrow, . . .', None of these statements indicates any reluctance on appellant's part.

When Reaves called the following day, appellant indicated, '(T)hat dude, I couldn't reach him last night. . . . ( ) . . . Well, if I could catch up with what's his name like I thought. I missed him you know, yesterday. I thought he got off work at 4:30 and he got off work at 3:30. He go to work at 7 and get off at 3:30.' However, after asking a few questions about Reaves' plan, appellant said, 'Yeah well, I'll see when he . . .. ( ) Well, I'll try to catch him. I, I know he get off at 3:30 there so I'll be there at 3:30 you know. . . . ( ) . . . Call me back at 4 o'clock. Cause if I catch him at 3:30, I be back at 4.' Appellant then made arrangements for Reaves to bring him the front money the next day. Appellant's argument that this conversation could possibly be construed as 'stalling' is based on pure speculation, as stated by the trial court. The Appellant's familiarity with the pattern and jargon of the check-passing scheme, and his access to a source of supply tend to show that he was not an innocent citizen unlawfully persuaded by law enforcement authorities to commit a crime. (See People v. Lara, 253 Cal.App.2d 600, 606, 61 Cal.Rptr. 303.) Appellant's reliance on People v. Monteverde, 236 Cal.App.2d 630, 642, 46 Cal.Rptr. 206, where a citizen with no known history of any wrongdoing obtained contraband through a local peddler, is misplaced. Here there was other evidence showing that appellant was regularly engaged in such activity, namely, the prior transaction involving the check from Eddie Nober, Inc., through which appellant and Reaves were to split the proceeds if Reaves successfully passed it. Appellant's argument that the jury might have disbelieved this portion of Reaves' testimony is beside the point, since even if they had, there is still no positive substantial evidence of entrapment.

delay was nothing more than that ordinarily entailed when dealing with a middle man. (See People v. Bernal, 174 Cal.App.2d 777, 779, 345 P.2d 140; People v. Bourland, supra, 247 Cal.App.2d 76, 92--93, 55 Cal.Rptr. 357; see also People v. Alamillo, supra, 113 Cal.App.2d 617, 619, 248 P.2d 421; People v. Malotte, supra, 46...